A Legal Analysis of Prop 8 Decision (John McCauslin, Guest Post)

As a follow up to our recent discussion of the consequences of the recent decision overturning California's Prop 8, which defined marriage as between a man and a woman, thereby excluding homosexuals from being granted marriage licenses -- and therefore the rights and benefits ordinarily provided to heterosexual married couples -- I asked John McCauslin, an elder in the congregation I pastor and a practicing attorney, to offer a legal analysis of the decision.  Now, this is a legal analysis of the reasoning behind the decision.  It is not, a theological analysis.  Ultimately, when it comes to marriage itself, congregations will have to make the decision as to whether or not they will participate/acknowledge these marriages.  We've had conversation about these other issues, so what I'd like to do here is simply limit the conversation to the legal implications of the case.  The issue itself emerges out of a broader conversation about how the Constitution is interpreted and applied.  I appreciate John's willingness to try to distill this issue into a rather brief 1200 words.  (Again, I'd like the conversation to focus on the legal issues, and not rehash the debate as to whether same sex marriage is contrary to Scripture).


Same Sex Marriage and the Law
By John McCauslin, JD

Two same-sex couples, including Kristin PERRY, applied for marriage licenses, each in different California counties and were turned down because of the requirement adopted into law by Proposition 8, passed by referendum in November of 2008. Specifically, Proposition 8 enacted a law which provides in its entirety: ”Only marriage between a man and a woman is valid or recognized in California.” Before the law was enacted over 18,000 same-sex couples had been granted marriage licenses by the State of California.

In May of 2009, the couples sued the county clerks, the state Department of Health, the state Attorney General and the Governor, Arnold SCHWARZENEGGER. The case was captioned PERRY v SCHWARZENEGGER, and filed and tried in the United States District Court for the Northern District of California. After a trial in January of 2010, on August 4, 2010, Chief District Court Judge Vaughn R. Walker, issued his Opinion and Order. While the judge is openly gay and in a long term gay relationship, the potential for bias is unavoidable, since the only other judges who could have hear the case were heterosexual, and thus just as predisposed, or not, to reflect a bias.

Plaintiffs argued that their rights to due process and equal protection under the law were violated by Proposition 8. The government defendants refused to defend. The proponents responsible for getting Proposition 8 on the ballot and getting it passed were allowed to intervene as defendants and mount a legal defense of the new law.

While plaintiffs called eight lay witness and nine highly qualified experts, defendants were able to call only two witnesses, both of who were disqualified as experts by the court. Defendants’ primary “expert” David Blankenhorn, is an anti-gay activist with no credentials or formal training as to the history, sociology, psychology, or the legal or ethical issues regarding same-sex marriage. He testified that his study of the effects of same-sex marriage involved “read[ing] articles and ha[ving] conversations with people, and tr[ying] to be an informed person about it.”

Blankenhorn also testified that "marriage would benefit same-sex couples and their children, would reduce discrimination against gays and lesbians and would be “a victory for the worthy ideas of tolerance and inclusion.”

Judge Walkers’ opinion included 80 specific “Findings of Fact” detailing the evolution of the civil institution of marriage, the history of invidious discrimination suffered by gays and lesbians generally and in regard to the institution of marriage, and documenting the evidence that gay marriage will not only cause no harm to the institution of marriage, but will result in wide ranging social and economic benefits to gays and lesbians and to society at large.

In its Due Process analysis, the court considered the evidence as it applied to two basic questions: (1) does the ban on gay marriage constitute a denial of the right to marry, and (2) does the state have any lawful basis to effectuate such a ban. Based upon the evidence presented the court found that Proposition 8 denies members of same-sex couples the right to marry a person of one’s choice, and that the state has no legitimate interest in denying this right to members of same-sex couples and therefore it violated the plaintiffs’ Constitutional rights to Due Process.

In its Equal Protection analysis, the court determined that Proposition 8 was discriminatory based on gender and sexual orientation. Based on its factual findings, the court ruled that the state had no lawful basis to enforce such discrimination. The court ruled that the state had no compelling interest, and in fact no rational basis, for allowing opposite sex couples to marry the person of their choice, while denying members of same-sex couples that same right. The court also ruled that the California provision for parallel (echos of “separate but equal” institution of “domestic partnerships” was not an adequate legal substitute for the right to marry because “marriages” and “domestic partnerships” carried very different social and economic consequences.

In one of the most revealing quotes from the decision the court ruled:

That the majority of California voters supported Proposition 8 is irrelevant, as “fundamental rights may not be submitted to [a] vote; they depend on the outcome of no elections.” Under strict scrutiny, the state bears the burden of producing evidence to show that Proposition 8 is narrowly tailored to a compelling government interest. Because the government defendants declined to advance such arguments, proponents (of Proposition 8) seized the role of asserting the existence of a compelling California interest in Proposition 8. (pp116-7)

In declaring Proposition 8 unconstitutional, the court concluded:

Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license. Indeed, the evidence shows Proposition 8 does nothing more than enshrine in the California Constitution the notion that opposite-sex couples are superior to same-sex couples.
Of significant importance, is the fact that the court based its ruling on findings of fact instead of exclusively on the judge’s interpretation of the law. Appellate courts are far more reluctant to reverse a decision based on factual findings than a decision based on legal merits.

More recently it has been noted by Judge Walker that in Perry v Schwarzenegger the proponents’ appeal may be thrown out because the proponents have no legal standing to claim an appeal. Federal procedural law limits the class of those who may appeal a ruling to include only those litigants who are adversely affected by a ruling or those who may be compelled to enforce such a ruling. The court has already made a finding of fact that heterosexuals will not be adversely affected by same-sex marriage. Therefore, proponents can show no adverse effects of the ruling on themselves. Because the proponents are not part of the state government of California they will not have any role in enforcement. And it appears they have no lawful standing to appeal.

People should be aware that this case is the second salvo in a war by the courts against crusading right wing religious groups seeking to subvert the law to their own purposes. In early July of this year a federal judge in Boston overturned part of the Federal Defense of Marriage Act (DOMA), declaring unconstitutional its ban on federal recognition of same-sex marriages that are otherwise legal at the state level. The case, Gill v Office of Personnel Management, was brought by gay or lesbian couples, who were legally married in the state of Massachusetts but, because of DOMA, had been denied various benefits such as “joint tax filing, social security, health and life insurance for the spouses of federal employees”to which heterosexual couples are entitled. United States District Judge Joseph Tauro rule that the DOMA impermissibly violated the Equal Protection Clause of the Constitution by creating two unequal classes of married couples.

These two decisions send a clear signal to anti-gay Christians that Federal courts are not going to tolerate attempts by religious groups to subvert and manipulate the law to punish and otherwise disadvantage people and groups with whom they disagree.

John McCauslin is an Elder at Central Woodward Christian Church (Disciples of Christ) and a practicing attorney in the state of Michigan


Gary said…
The decision is unconstitutional. There is no legal protection for homosexuals in the Constitution. There is nothing in the Constitution that mandates same-sex marriage, or that prevents states from defining marriage as being only between a man and a woman. Judge Walker is not just wrong in his reading of the Constitution, but I believe he is deliberately lying about it.
John said…

You are wrong on all points. The issue is not whether the Constitution protects homosexuals or mandates same-sex marriage. The point is that the Constitution protects everyone, including homosexuals, from disparate treatment. The point is that the Constitution will not allow the government, state or federal, to deny certain persons rights and privileges while at the same time allowing those same rights and privileges to other persons.

And yes, the Constitution does place limits on how the state can regulate marriage- for example, it cannot outlaw marriage between people of different races, it cannot take away a woman's property and give it to her husband; it cannot compel a woman to be her husband's slave, it cannot deny a man or woman a divorce if they want one, even if they cannot provide evidence that their spouse was at fault. Judge Walker ruled that since the state cannot regulate the race of a spouse, or the conduct of a spouse, there is no rational basis, let alone compelling state interest, justifying a state's attempt to regulate the gender of a spouse.

You are going to have to do a lot better than simply declaring the decision unconstitutional.

George Breed said…
I think everyone's mind is made up on this, so will use the Constitution, the Bible, or whatever other ammo handy to beat folk over the head who disagree with them.
Gary said…

There is no right, either Constitutional or deriving from any other credible source, to same-sex marriage. Such a right does not exist.

Homosexuals are not being treated any differently than heterosexuals when it comes to marriage; everyone is allowed to marry someone of the opposite sex. That is not unequal treatment. If homosexuals, or heterosexuals do not want to do that, then let them not marry. But to say that limiting marriage to a man and a woman is unfair to homosexuals, and denies their "rights" is just factually wrong.

There is a very strong rational basis for denying same-sex marriage: same-sex marriage is perversion. It is wicked. It is evil. It is immoral. It is detrimental to society. To claim, as the wicked pervert Judge Walker does, that it is not in the government's interest to prevent evil is in itself an evil, as well as being irrational.

You've made your point. So, I'm going to ask that you let others enter the conversation, without your input. I will be moderating the conversation and deleting if it gets out of hand.
Doug Sloan said…
U.S. Supreme Court
Loving v. Virginia, 388 U.S. 1 (1967)
Decided June 12, 1967

"These statutes also deprive the Lovings of liberty without due process of law in violation of the Due Process Clause of the Fourteenth Amendment. The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.

Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival. Skinner v. Oklahoma, 316 U. S. 535, 316 U. S. 541 (1942). See also Maynard v. Hill, 125 U. S. 190 (1888)."

- - - - - - - - - -

U.S. Supreme Court
Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535 (1942)
Decided June 1, 1942

A decision to overturn "A statute of Oklahoma provides for the sterilization, by vasectomy or salpingectomy, of "habitual criminals""

"We are dealing here with legislation which involves one of the basic civil rights of man. Marriage and procreation are fundamental to the very existence and survival of the race. The power to sterilize, if exercised, may have subtle, far-reaching and devastating effects. In evil or reckless hands, it can cause races or types which are inimical to the dominant group to wither and disappear. There is no redemption for the individual whom the law touches. Any experiment which the State conducts is to his irreparable injury. He is forever deprived of a basic liberty."

- - - - - - - - - -

U.S. Supreme Court
Maynard v. Hill, 125 U.S. 190 (1888)
Decided March 19, 1888

"It is also to be observed that while marriage is often termed by text writers and in decisions of courts as a civil contract, generally to indicate that it must be founded upon the agreement of the parties, and does not require any religious ceremony for its solemnization, it is something more than a mere contract. The consent of the parties is, of course, essential to its existence, but when the contract to marry is executed by the marriage, a relation between the parties is created which they cannot change. Other contracts may be modified, restricted, or enlarged, or entirely released upon the consent of the parties. Not so with marriage. The relation once formed, the law steps in and holds the parties to various obligations and liabilities."
Doug Sloan said…
Decided June 26, 2003

Bowers was not correct when it was decided, and it is not correct today. It ought not to remain binding precedent. Bowers v. Hardwick should be and now is overruled.

Had those who drew and ratified the Due Process Clauses of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities, they might have been more specific. They did not presume to have this insight. They knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.
Doug Sloan said…
Based on LAWRENCE v. TEXAS, consenting adults can have just about any relationship they want and it is constitutionally protected.

LOVING v. VIRGINIA establishes marriage as a constitutionally protected right.

If the Prop 8 case even makes it to the Supreme Court, the court will have little choice but to rule against Prop 8.

The case might not even make it to the Appelate Court. Supposedly, the proponents of Prop 8 will have to prove that they are harmed by same-sex marriage. Without such proof, they will have no standing to ask for an appeal. At this point, John McCauslin needs to offer an opinion.

There will be a certain wry irony if the Prop 8 decision is left standing because the legal defense of Prop 8 is so weak as to be unusable.
David Mc said…
Those who think a reduction in homosexuals in society is desired should consider the likely genetic component. Forcing them into heterosexual relationships leads to personal pain and a likely increase in it's prevalence through their offspring. This isn't why I accept the lifestyle, but those who don't should consider the likely outcome of their hate. The same logic would encourage religious freedom, since the opposite leads to fanaticism. In any case, many must be awfully tempted by this "sin" to rail against it so. If sin has no pleasure, is it really sin? -

Shang-Ding Zhang and Ward F. Odenwald found that what they took to be homosexual behavior among male fruit flies--touching male partners with forelegs, licking their genitalia, and curling their bodies to allow genital contact--could be induced by techniques that abnormally activated a gene called w (for "white," so called because of its effect on eye color). Widespread activation (or "expression") of the white gene in Drosophila produced male-to-male rituals that took place in chains or circles of five or more flies. If female fruit flies lurked nearby, male flies would only rarely be tempted away from their male companions. These findings, which have apparently been reproduced by others, have led the investigators to conclude that "w misexpression has a profound effect on male sexual behavior."
Anonymous said…
If sin has no pleasure, is it really sin? - That didn't come out so well, but you know what I'm implying.
John said…

I am not certain what sort of opinion you are seeking, but as for your last observation, I dleted a similar observation from my main piece due to space concerns. The proponents case was very likely weakened by the last minute refusal of the bulk of the proponent's witness, lay and expert, to testify.

They say bad cases make bad law, and it is entirely possible that the failure of the proponents to mount a very effective case may well weaken the impact of the decision in the long run.

That being said, the court of appeals can accept a case based on the gravity of the issues raised (ignoring procedural hurdles such as the standing issues confronting the proponents), and the court can appoint advocates to beef up the quality of the legal presentation.

But I remain convinced that the factual findings of the trial court are going to carry considerable weight, however this case proceeds.

John said…
I have seen that it is no good to think in terms of why homosexuals are that way. The fact is they are, and heterosexuals are the way we are.

This is important because as a Christian I think it inappropriately patronizing for me to see myself as reaching out to homosexuals as a 'damaged' group. They are not damaged, and they don't need my compassion, fixing, sympathy, or protection. They need a home, where they can be accepted and honored as whole persons, as whole as anyone else. They need a place where they can approach and worship God without looking over their shoulders, without needing to explain, and where they are not objects of compassion, but where they can give and receive genuine brotherly/sisterly affection as full members of the congregation.

I leave the research and explaining to the experts, and I leave their conclusions to them as well. The homosexuals in my life are whole persons, and I want to interact with them as friends and equals in each others eyes, as well as in God's eyes.
David Mc said…
"I have seen that it is no good to think in terms of why homosexuals are that way."

I think to ask and learn why is why we're here. I meant to disrespect.
David Mc said…
meant to disrespect.

yikes, to = no!
Anonymous said…
This comment has been removed by a blog administrator.
The Burner said…
Thanks, Bob and John for this view. The legal aspects of this debate are important to consider outside the moral/religions considerations.

The Burner

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